4.1 The need for a change in the law arises from changes in social attitudes since the 1930’s and with them the public’s attitude to corporal punishment. In 1992 the Scottish Law Commission’s Report on Family Law 17 recommended that there should be no defence in cases of corporal punishment using a stick, belt or other object, and that only those with parental responsibilities and rights should be able to administer corporal punishment. This recommendation was rejected during the passage of the Children (Scotland) Act 1995 and remains unimplemented.
4.2 In addition, the UK Government undertook to examine the law in the UK following an English case heard by the European Court of Human Rights. In the circumstances of that case, the Court ruled that the law in the UK had failed to protect a boy, who had suffered repeated and severe beatings with a cane, from "inhuman or degrading treatment", in contravention of Article 3 of the European Convention on Human Rights. The case is referred to as A. v the United Kingdom. 18
4.3 The case arose in England after his brother reported that A. had been repeatedly beaten with a garden cane by their stepfather-to-be. A. was only 9 years old, and some of the strokes were inflicted directly on the bare skin, causing significant bruising. The man was subsequently charged with assault occasioning actual bodily harm contrary to Section 47 of the Offences Against the Person Act 1861. This is similar to the law in Scotland. He was tried in February 1994 and raised a defence of reasonable chastisement under English common law. A jury found him not guilty.
4.4 A. then made an application to the European Commission of Human Rights which found, and the UK Government accepted, that there had been a violation of A.’s rights under Article 3. There was subsequently a full hearing before the Court. In a judgment delivered in September 1998, the Court held that the beating suffered by the boy reached the level of severity prohibited by Article 3 of the Convention, which states that:
"No one shall be subjected to torture or to inhuman or degrading treatment".
4.5 The Court said that, though the UK was not responsible for the actions of the stepfather-to-be, because of the way in which the defence of ‘reasonable chastisement’ had been applied, the law in the UK had failed to protect A. from the severe beatings which he had received. The Court ruled that States are required to take measures to protect children against such treatment. It said:
"The Court considers that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals … . Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity."
4.6 The UK conceded that, in this case, it was in breach of Article 3 of the Convention. The Court’s decision was based on the facts of the case before it. No general statement was made about the physical punishment of children, although A.’s legal representative had invited the Court to make such a statement.
4.7 If a similar case, involving inhuman or degrading treatment in breach of Article 3, had been tried in Scotland it would have been open to the procurator fiscal to invite the court to rule that there could be no finding that the chastisement was reasonable. It would not be possible for ‘inhuman or degrading treatment’ to be held to be ‘reasonable chastisement’.
4.8 However it may not always be apparent exactly where the boundary between the two lies. Therefore, we must make sure that Scots law does protect children from ‘inhuman or degrading treatment’. This paper seeks views on how to make the current law in Scotland more precise so as to prevent criticism that Scottish law may operate in an arbitrary and subjective manner and so fail to meet our ECHR obligations.